Summer brings predictable absenteeism as employees extend breaks with medical leave or treat remote work as a paid vacation. Employers who ignore this reality pay the price through lost productivity and morale, according to employment lawyers Howard Levitt and Jeffrey Vandespyker.
The Legal Risks of Challenging Leave
Questioning an employee's medical leave too aggressively risks allegations of discrimination or failure to accommodate. But accepting every request without scrutiny leaves businesses short-staffed while co-workers resentfully pick up the slack, often knowing their colleague is not disabled but simply elongating their summer vacation.
The law does not require employers to be either cynical or naïve. Employment law has never said that feeling better at the cottage than at the office makes someone medically incapable of working. The legal test is whether the employee can perform the essential duties of the job, not whether they would rather be elsewhere.
Functional Abilities Forms as a Solution
One of the costliest mistakes employers make is treating every doctor's note as though it ends the conversation. A note saying an employee is 'off work until Labour Day' may justify further questions. Employers have both the right and the legal obligation to understand the employee's functional limitations before determining whether leave or accommodation is appropriate.
Functional Abilities Forms require physicians to identify what the employee can and cannot do, rather than simply declaring the employee should remain off work. Physicians are understandably more careful when asked to justify restrictions they may later need to defend.
Remote Work and the 'Staycation' Problem
Remote work has become an indispensable recruiting and retention tool, but it has also become an opportunity for some to work from the beach, the golf course, or another country without the employer's knowledge — often without doing much work at all. Technology has made remote work easier, but it has also made time theft easier.
The answer is not intrusive surveillance, according to Levitt and Vandespyker. It is competent management. Employers should establish clear expectations regarding availability, responsiveness, working hours, performance standards, travel outside the jurisdiction, and occasions requiring in-person attendance. Employees cannot be disciplined for violating rules that were never communicated.
